Firstly, you need to determine the type of intellectual property you actually have that can be protected.  Intellectual property is not registered or protected as a ‘thing’ in itself, more it is the top of an umbrella that covers many different forms of intellectual property; intellectual property is the collective term for ‘property’ that you’ve created through your intellect and mind. Some types of intellectual property require formal registration through a government body in order to be protected and for ownership to be claimed, others are automatic.

You cannot protect ‘ideas’ as intellectual property. In order to protect a form of intellectual property it has to take some sort of physical appearance or tangible form.

1.  Patents

Are devices, substances, methods or processes that are new, inventive and useful. – Often referred to as ‘inventions’. To claim protection and ownership you must formally register your patents. As they must be new it is important to keep your inventions quiet until you have sought appropriate advice on their protection. Patents have a maximum life span for you to exploit the invention as your exclusive property. The life span depends on the type of patent sought.

2.  Designs

A registered design covers the look or appearance of a product that is new and distinctive. A design does not cover the way something works, its purpose or function – these elements are likely to fall under the heading of patents. To truly protect your designs so that you can stop copy-cats you will need to obtain certification of your registered design. Again, as a design must be new you will need to consider filing of applications before disclosing the design to anyone. Designs have a maximum lifespan of 10 years where you can exploit exclusive ownership.

3.  Trademarks

Are signs used to distinguish your goods/services from other people’s, such as brand names, logos, slogans and the like. Formal registration is required in order to claim protection and ownership. Unlike Patents & Designs they do not have to be new, so, you can file applications after disclosing your trademarks to the marketplace. Trademarks, in Australia, can be renewed in 10 year blocks indefinitely.

4.  Plant Breeders Rights

If you breed new and distinctive varieties of plants, you can formally register your rights. As with the above, the rights are not automatic. As your variety must be new, it is crucial to seek advice and consider your position before disclosing to the public. If you disclose too soon you may lose the opportunity to gain exclusive ownership.

5.  Copyright

Is automatic, which means no applications and no fees. Copyright covers any ‘work’ that is original and creative such as literary works, dramatic works, broadcasting works, craft works etc. If you are the original creator or author then you own the copyright. If you have outsourced any sort of work, be sure your contractor has assigned (transferred) any copyright ownership back to you, or, by default they will actually own it. Copyright generally lasts for the life of the creator plus 70 years and where duration depends on year of publication, it lasts until 70 years after it was first published.

6.  Circuit Layouts

Are also automatic rights granted to original layout designs of integrated circuits and computer chips. Whilst based on copyright laws, they form their own form of protectable intellectual property. Rights last for 10 years from the first commercial exploitation of the circuit layout; Noting that the first commercial exploit must occur within 10 years of creation to be valid, or, within 10 years from when it was made. So, really the maximum life span is 20 years.

7.  Important Notes and Tips

  • Patents, Designs and Plant Breeders Rights all demand that the subject matter be new. This means if you have sold, promoted or publicly disclosed your patent, design or plant you may have lost the ability to protect it. Seek advice before any public disclosure occurs; and, if you must disclose sooner, have the other party sign a non-disclosure or confidentiality agreement;
  • Generally speaking intellectual property rights extend throughout the country in which you have registered. Therefore, if you wish to promote your intellectual property outside of Australia, you’ll need to consider the filing of applications in those other countries.  In some cases, especially with Patents & Designs, strict time frames will apply in order to seek protection overseas.
  • Intellectual property protection and registration is complicated. It is suggested that professional advice be sought, and that you engage the services of a professional in attending to your applications and registrations. Errors made in the application stage may result in a lack of protection, an invalid protection and/or the need to start over at additional expense.

Conclusion

If you’re after the most efficient, high-quality legal advice regarding the protection of your intellectual property, contact LegalVision on 1300 544 755 to speak with one of our IP solicitors.

Jacqui Pryor

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